INTERNATIONAL INTELLECTUAL PROPERTY
FINAL EXAMINATION -- SPRING 1997

This exam consists of four questions. You have two hours in which to outline and write your answers. The first question counts for 10% of your total grade for this exam; the second counts for 10%; the third counts for 40%; and the fourth counts for 40%. I suggest that you allocate your time accordingly.

I strongly advise that before you begin writing your answers you 1) read the question carefully; 2) think about exactly which issues you need to address; and 3) outline your answer. Good organization and good analysis almost always go hand-in-hand.

Use as many exam booklets (or, if typing, sheets of paper) as you need. Number the booklets (or sheets) so that I can easily follow their intended sequence. Please write or type on one side only of each page.

For your benefit and my eyesight, please write as legibly as possible (or type).

This is an open book exam. You may use your casebook, any material that I handed out in class, and any notes that you or your study group prepared. You may not use supplementary texts, computers, or electronic devices that provide searchable files.

If you have any procedural questions, please direct them to Jennifer Patterson, in the registrar's office. She will know how to reach me.

I've got a very successful friend to whom people often say, "Gosh, you're lucky." She always replies, "The harder I work, the luckier I get." May you, too, achieve the success that your hard work merits.

Please briefly enumerate the various ways in which artists can protect their moral rights under U.S. law.

Please define the "droite de suite" and discuss to what extent U.S. law protects it.

Your client, Angus T. Bone, fancies himself a chef-inventor. He has won a U.S. patent on a process for preserving beef in the form of lollipop. He explains, "It's jes' like mincemeat on a stick! Mmmm Mmmm! Melts in your mouth!" Surprisingly or not, Mr. Bone's attempts to sell his "Beef Stake" (the unregistered trademark under which he offers his product) have met with little success in the U.S.

Fortunately for Mr. Bone, Japanese consumers love his confection. From his Texas plant, he ships ready-to-sell Beef Stakes to the Tokyo-based Goshi Wholesale. Under an exclusive license from Mr. Bone, Goshi advertises, distributes, and sells Beef Stakes to Japanese retailers. Mr. Bone has not given up on the U.S. market, however. "Oh, they'll come around--soon as they see some cel-leb-rity knawin' on one! I got a call in right now to that Seinfeld feller . . . ."

It was thus with some dismay that Mr. Bone discovered his Beef Stakes for sale in U.S. pet shops! It seems that the Japanese company Ohno has been buying Beef Stakes from Japanese retailers and (unbeknownst to Goshi) reselling the Beef Stakes to U.S. pet stores. It turns out that dogs and cats love Beef Stakes, too. This alone upsets Mr. Bone, since he figures he will never crack the lucrative U.S. market for human consumers if people here associate Beef Stakes with Meow Mix and the like. Worse yet, though, he has discovered that Ohno has begun slipping counterfeit Beef Stakes into its U.S. shipments. These fake Beef Stakes are made and packaged somewhere in Japan.

Mr. Bone wants to halt all unauthorized shipments of Beef Stakes from Japan to the U.S., and has come to you for help. Please write a short memo describing what sort of relief he might have under U.S. and international law. Assume for your purposes that Japan is a signatory to every applicable international agreement on intellectual property. Refer to such agreements, as well as domestic statutes, as necessary. Do not neglect to address practical business concerns.

As a close advisor to Senator Streisand, you've come to know how deeply she cares both about the arts and about disadvantaged people worldwide. You were thus not surprised when she took an interest in the rights of the creators of native cultures.

"Those poor people in undeveloped and developing countries have spent generations refining their traditional stories, songs, and arts!" She exclaimed to you recently. "Then some U.S. exploiter mimics the plot from an old tale and plugs it into a kids' cartoon, or steals a sound-bite from a village celebration and puts it in a rave tune, or borrows the pattern in a woven rug and mass-produces it for Pier One! The U.S. exploiter makes a million and the real creators get nothing! Can't we, through international intellectual property protection, do something to ensure that the creators of native cultures get a share of the benefits won by U.S. exploiters?"

Please write for Sen. Streisand a short memo discussing the merits and liabilities of acting on her concern for native cultures. Among other topics, be sure to consider the following questions:

1) How well does the sort of protection she wants fit into traditional categories of intellectual property? Consider, in turn, each of the three examples she gave--the plot, the sound-bite, and the rug pattern.

2) What sort of policy impacts would protecting native cultures have? In other words, what sorts of incentives and disincentives--and, ultimately, what sort of world--would result?

3) What political players would support or resist a stature or treaty protecting native cultures? Which ones would prove most influential?

Consider other angles as you see fit. Be sure to give Sen. Streisand a conclusion, though, as she needs to know whether or not to have her staffers act on her concern.

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